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72 Cards in this Set
- Front
- Back
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What does intent mean in torts?
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Purpose to bring about the consequence or knowledge to a degree of substantial certainty that it will occur anyway.
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What is the prima facie case for battery?
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Harmful or offensive contact with the plaintiff's person.
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What is the prima facie case for assault?
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Reasonable apprehension of an immediate battery.
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What is the prima facie case for false imprisonment?
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Sufficient act of restraint to a bounded area.
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What is the prima facie case for intentional infliction of emotional distress?
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Outrageous conduct causing damages.
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What damages must be proven at common law for IIED?
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Severe emotional distress.
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What damages can be shown in NC for IIED?
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Any emotional or mental disorder generally recognized and diagnosed by medical profession.
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What is the prima facie case for trespass to land?
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Act of physical invasion to another's land.
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What is the prima facie case for trespass to chattels and conversion?
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Active invasion to personal property (and for conversion, there is a lot of damage or prolonged removal from possession).
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What defenses are there to intentional torts?
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Consent
Self Defense Defense of Others Defense of Property Necessity Discipline |
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What is a public necessity?
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An unlimited privilege to protect a lot of people.
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What is a private necessity?
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A qualified privilege to protect a limited number of people. The person does not commit a trespass, but is still liable for any damages.
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What are the common law elements for a prima facie case of defamation?
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False and defamatory statement by the defendant
of and concerning the plaintiff published to a 3d party causing damages |
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What is a defamatory statement?
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a statement that injures the plaintiff's reputation.
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When defamation is spoken, what is it called, and what must be proved?
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Slander. Special damages must be proven.
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When defamation is broadcast, what is it called, and what must be proved?
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Libel. Damages are presumed.
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What are the common law defenses to defamation?
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Truth
Absolute privilege (judicial proceedings, legislative proceedings, communications between spouses) Qualified privilege |
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In cases involving matters of public concern and defamation, what must be proved?
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Falsity and fault.
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For public persons to recover under defamation, what must be proved?
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Actual malice.
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For private persons to recover under defamation, what must be proved?
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fault amounting to at least negligence.
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What is appropriation and is it recognized in NC?
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Use of the plaintiff's name or picture for commercial advantage without permission. Recognized in NC. Must be used for advertising or promotional purposes.
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What is intrusion and is it recognized in NC?
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Interference with a plaintiff's seclusion in a way that would be objectionable to the ordinary person. NC hasn't considered the issue.
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What is false light and is it recognized in NC?
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Widespread dissemination of information that is in some way inaccurate and that would be objectionable to an average person. NC doesn't recognize.
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What is public disclosure of private facts and is it recognized in NC?
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Widespread dissemination of factually accurate information that would normally be confidential, and the disclosure of which would be objectionable to an average person. NC doesn't recognize.
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What are the defenses to an invasion to the right of privacy?
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Consent
Absolute and qualified privileges |
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What are the elements of fraud?
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Affirmative misrepresentation
Fault (scienter) Intention to induce reliance Justifiable reliance Damages |
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What are the intentional interference with business relations torts?
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Inducing breach of contract
Interference with contractual relations Interference with prospective economic advantage. |
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What are the wrongful institution of legal proceedings torts?
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Malicious prosecution
Abuse of process |
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What is the prima facie cause of action for negligence?
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Duty
Breach of Duty Causation Damages |
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To whom do you owe a duty?
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To all people who are foreseeable victims of your failure to take precautions.
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How much care must you exercise?
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the amount of care that would be taken by a reasonably prudent person under the same or similar circumstances.
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What is the duty owed to an undiscovered trespasser?
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No duty.
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What duty is owed to a discovered trespasser? (in NC?)
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Reasonable care and duty to protect from man-made death traps. In NC, no duty short of willful/wanton conduct.
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What duty is owed to a licensee?
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Reasonable care and duty to protect from concealed condition known to the owner.
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What duty is owed to an invitee?
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Reasonable care and duty to protect from concealed/known condition and unknown conditions which could have learned about through reasonable inspection.
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How does something become negligence per se?
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Statute designates class of person and class of risk and plaintiff falls in both.
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What are the exceptions to negligence per se?
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Compliance with the statute is more dangerous than violating the statute.
Compliance is impossible under the circumstances. |
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Is there an affirmative duty to rescue? What are the exceptions to this?
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No. Exceptions are where defendant put the plaintiff in peril, defendant is in a specific relationship with the plaintiff, or defendant had actual ability and authority to control plaintiff.
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What is a negligent infliction of emotional distress?
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Where defendant exposed plaintiff to physical risk and plaintiff later showed physical manifestations of harm.
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How is a breach of duty shown?
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Plaintiff must point to specific conduct. Can be through evidence of custom or res ipsa loquitur.
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What must a plaintiff prove for res ipsa loquitur?
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The event is one that does not normally occur absent negligence.
The injury causing instrumentality was under defendant's exclusive control. This will get plaintiff to jury. |
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What do you need for adequate causation?
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Cause in fact and proximate cause.
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What is cause in fact?
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But For the defendant's conduct, the injury would not have occurred.
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What is proximate cause?
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A person is only liable for those harms that are foreseeable within the risk of his activity.
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What intervening causes will not cut off a defendant's liability because they are always foreseeable?
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Subsequent medical malpractice
Negligent rescue Reaction forces Subsequent diseases or accidents |
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What intervening causes will not cut off a defendant's liability if the defendant could anticipate the intervening cause?
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Negligence of a 3d party
Criminal conduct Force Majeure |
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What are the elements for damages of a typical injury award?
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Past/future medical expenses
Past/future lost income Pain and suffering |
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When are punitive damages available in NC and what are they capped at?
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Only if defendant is liable for compensatory damages and acted willfully/wantonly//with malice. Capped at 3x compensatory damages or $250k.
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What are the defenses to negligence?
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Contributory negligence
Assumption of the risk Comparative negligence |
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When can a plaintiff recover despite contributory negligence (in a state that recognizes contributory negligence)?
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Last Clear Chance Doctrine.
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What are the attributes of abnormally dangerous activities?
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Incapable of being conducted except with high risk.
If harm occurs, likely to be severe. Uncommon in the community where it's taking place. |
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What is the prima facie case for a strict products liability cause of action?
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Defendant must be merchant seller of goods.
Product must be defective The defect existed when it left the seller's hands. Plaintiff made a foreseeable use of the product. |
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What normally insulates a defendant from strict liability?
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An adequate warning.
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What is a private nuisance?
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conduct that causes a substantial and unreasonable interference with the use and enjoyment of land.
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What is a public nuisance?
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conduct that causes physical or moral harm to the public in general.
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When is an employer vicariously liable for torts committed by employee?
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Torts committed within the scope of employment.
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When will there be vicarious liability for independent contractors?
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inherently dangerous activity.
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What two actions do not survive the death of a plaintiff in NC?
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Defamation or false imprisonment claims.
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How are damages calculated in an action for trespass to chattels?
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the amount of damage D caused to the chattel
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How are damages calculated in an action for conversion?
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the chattel's full value or, alternatively, replevin
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In an action for defamation, when must the plaintiff prove special damages?
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when the defamation is spoken (Slander)
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What are special damages in a defamation action?
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Actual monetary loss attached to the defamation
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When may juries presume damages in a defamation action?
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When the defamation is written or broadcast (libel), and in cases of slander per se
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What are the traditional categories of slander per se?
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1) Statements that impugn one's trade or profession
2) Accuse the plaintiff of committing a serious crime 3) Imply the plaintiff has a loathsome disease 4) Impute unchastity to a woman (*abandoned in NC) |
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What are the prima facie elements of defamation?
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1. defamatory statement, that turns out to be false
2. of and concerning the plaintiff 3. published to a third party 4. damages (special or presumed) |
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If defamation involves a matter of public concern, what additional elements must the plaintiff prove?
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1. Falsity (burden shifted to P)
2. Fault (knowledge or reckless disregard for public persons; negligence for private persons) |
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What are the common law defenses to defamation?
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Consent, truth, absolute privilege, and qualified privilege
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What is absolute privilege for defamation purposes?
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statements made in the course of judicial proceedings or legislative proceedings, or communications between spouses
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What is qualified privilege for defamation purposes?
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(\during the course of legitimate public debate or to serve the interest of the person who receives the publication
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In matters of public concern, how can private plaintiffs recover presumed or punitive damages?
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Must prove actual malice (knowledge or reckless disregard)
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When do you use the substantial factor test of causation?
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When you have multiple defendants and a comingled cause
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When do you use the burden shifting test of causation?
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When you have multiple defendants and an unknown cause
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